Courts in 39 American states still admit the “gay-panic” defence

DANIEL SPENCER was a quiet, 32-year-old film editor who had recently moved to Austin, Texas from Los Angeles. He was also gay. In 2015 his neighbour, James Miller, stabbed him to death. The case was harrowing. But a legal quirk uncovered during the trial made it even worse. Mr Miller introduced the “gay-panic” defence in court, arguing that at some point on the night of the murder, Mr Spencer had tried to kiss him. The victim’s apparent homosexuality had made Mr Miller fearful for his safety and thus diminished his responsibility. Despite a lack of physical evidence (and the fact that Mr Miller defended himself by stabbing the victim twice in the back), he was sentenced to just six months in jail, with ten years on probation. 

The case was no anomaly. The “gay- panic” defence remains legally admissible in 39 states according to the Movement Advancement Project, a think-tank. It normally bolsters either insanity or self-defence claims, and its use goes back decades. The brutal ‘candlestick murder’ of Jack Dobbins in Charleston in 1958 resulted in a full acquittal of the man who confessed to the crime, based on the fact that the victim had allegedly made unwanted advances. Although attitudes to homosexuality have changed since then, the law in some places has not.

The defence is “the problem hiding under the sofa”,...

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